THE SUPREME COURT: THE NEBRASKA CASE

By LINDA GREENHOUSE

Published: June 29, 2000

WASHINGTON, June 28—
The Supreme Court ruled by a 5-to-4 vote today that the government cannot prohibit doctors from performing a procedure that opponents call partial-birth abortion because it may be the most medically appropriate way of terminating some pregnancies.

The decision declared unconstitutional the Nebraska law before the court and, in effect, the laws of 30 other states. In addition, the bill to create a federal ban on the procedure, which President Clinton has vetoed twice and which may reach his desk again this year, would also be unconstitutional under the court's analysis: like all the other laws, it does not contain an exception for the health of the pregnant woman.

The decision, with a majority opinion by Justice Stephen G. Breyer, was analytically broader than many people expected, finding fault not only with the law's concededly imprecise language, but with the absence of an exception for women's health. [Excerpts, Page A26.] At the same time, the 5-to-4 vote was unexpectedly close for a court where support for the underlying right to abortion has been counted as 6 to 3.

The combination of the broad ruling and the close vote led Janet Benshoof, president of the Center for Reproductive Law and Policy, which represented the Nebraska doctor who challenged the law, to describe the day as one for ''Champagne and shivers.'' The immediate reaction from politicians and advocates on both sides of the abortion debate made it likely that the court's future composition would be the subject of greater than usual focus during the remainder of this election year. [Page A26.]

The decision, one of four today that totaled 391 pages, came on the final day of the court's term.

''Partial-birth abortion'' is the term opponents of abortion use to describe a method that doctors use infrequently to terminate pregnancies after about 16 weeks. Anti-abortion forces coined the term in the mid-1990's and have focused on graphic descriptions of the procedure as a way of undermining public support for abortion. The ruling today represents a significant setback to that strategy.

Justice Anthony M. Kennedy's dissenting opinion was a major surprise to both sides of the abortion debate. Not only his disagreement with the majority, but also the terms in which he expressed his views both in this case and in a second abortion-related decision today indicated Justice Kennedy's deep unease with a 1992 decision, of which he was a joint author, that had reaffirmed the right to abortion. The second decision upheld restrictions on demonstrations outside abortion clinics.

Emphasizing what he described as the ''consequential moral difference'' between the ''partial-birth'' method and other abortion procedures, Justice Kennedy said that in its 1997 law, Nebraska ''chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.''

Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg in an opinion concurring with the majority, said it was ''simply irrational'' to find a fundamental difference in one procedure over another. Justice Stevens said it was ''impossible for me to understand how a state has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman'' in exercising the constitutional right to obtain an abortion.

Eight of the nine justices -- all but David H. Souter, who joined Justice Breyer's majority opinion -- wrote opinions in the case, Stenberg v. Carhart, No. 99-830. In addition to Justices Souter, Stevens and Ginsburg, Justice Sandra Day O'Connor joined the majority opinion. In addition to Justice Kennedy, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas wrote dissenting opinions.

In striking down the Nebraska law, the majority went further than the federal appeals court whose decision the court upheld today. The United States Court of Appeals for the Eighth Circuit, in St. Louis, had found Nebraska's law unconstitutional because, while it was ostensibly aimed only at a particular type of late-term abortion, its vague wording would chill doctors in performing a common second-trimester abortion procedure that undoubtedly had constitutional protection under the Supreme Court's precedents.

The Supreme Court agreed with that analysis but went on to rule that even a more precisely worded statute that avoided that problem would still be unconstitutional in the absence of a health exception.

Surveying medical opinion on the subject, Justice Breyer said there was a ''substantial likelihood'' that the method at issue was ''a safer abortion method in certain circumstances.'' He added, ''If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences.''

Justice Breyer called the ruling ''a straightforward application'' of the court's 1992 ruling in Planned Parenthood v. Casey, which reaffirmed the 1973 ruling in Roe v. Wade. But the dissenters disagreed and said the decision went further in the direction of protecting an unqualified right to abortion. Justice Kennedy, an author of the Casey decision, said the ruling today was based on a ''misunderstanding'' of that decision and ''contradicts Casey's assurance that the state's constitutional position in the realm of promoting respect for life is more than marginal.''